Articles

This short speech reflects on the critical role written submissions play within appellate practice and offers an insight into the stages of judicial consideration of submissions within appeal courts. The art of drafting submissions that clearly and concisely convey one’s argument is a vital aspect of appellate practice, and poses a challenge for lawyers. The essential functions of written submissions in appellate practice are outlined, highlighting the critical role they play in the process of intellectual synthesis in the court. No mere procedural precondition, written submissions provide a foundation and structure for effective oral address, and play an increasingly prominent role in modern appellate practice.

Judges have a duty to deliver reasons for judgment and those reasons should be coherent and comprehensive. Parties to litigation rely on those reasons to understand the outcome of their case and to determine whether or not to pursue an appeal. Although it is desirable that reasons for judgment not be amended, there will be circumstances where a judge’s reasons require amendment to correct an error or to include part of the reasons that had been omitted in error. The jurisdiction to amend reasons for judgment needs to be balanced with the principle of finality of litigation. Applications to amend reasons for judgment are likely to be granted where the proposed amendments are of a minor nature and do not alter the substance of the reasons. Judges are also able to amend their reasons for judgment in the absence of an application from a party to the litigation. However, draft reasons and indicative reasons should generally be avoided as they may lead to applications for amendments to reasons that go beyond the limits of what is permissible.

The decision of Patsalis v State of New South Wales (2012) 266 FLR 207 represents a fundamental development in the common law of Australia. The extent to which the Felons (Civil Proceedings) Act 1981 (NSW) (FCPA) applied to applications for judicial review brought by prisoners convicted of a serious indictable offence or a felony remained unclear before the decision of Patsalis. This article examines some of the important implications that flow from the decision of Patsalis, such as the fact that “civil proceedings” in the statutory context of the FCPA was held not to apply to applications for judicial review of administrative decisions brought by a prisoner convicted of a serious indictable offence or a felony who sought to challenge his or her incarceration. The article also examines the common law principle of attainder in light of the statutory enactment of the FCPA.

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